Durable Power of Attorney for Health Care

Durable Power of Attorney for Health Care

A durable power of attorney for health care allows you to designate an agent to make all decisions about your health care if you are unable to make these decisions yourself. This applies to all health care decisions and for all types of medical conditions. It is much broader than a living will, which only expresses your desires if you become terminally ill, permanently unconscious, or other conditions based on state law, and are unable to express your wishes regarding the use of life-prolonging procedures.

The health care power of attorney is not limited to situations in which you are terminally ill, in a persistent vegetative state, or in some other condition narrowly defined by state law. It is not limited to life­prolonging procedures, either. Issues may arise if you don’t have both a living will and health care power of attorney in place.

Example: Dave is in an automobile accident that leaves him in a coma. His physician expects him to eventually recover, so he is not in a terminal condition, end-stage condition, or persistent vegetative state. While Dave is in the coma, a question arises about whether he should have surgery. If he were not in a coma, Dave would be able to listen to the doctor's explanation of the relative risks and benefits of having the surgery or not having the surgery, and could make a decision. Since Dave is in a coma, he cannot make this decision.

Dave has a living will, but this does not come into play here because he is not in one of the three conditions provided for in a living will. As Dave does not have a health care power of attorney, his state's law allows his only son, Jim, to make the decision. Jim is not someone Dave would trust to make important medical decisions. Dave would prefer to have his mother, who is a registered nurse, make such decisions, but under his state's law, a son takes priority over a parent. Dave should have made a health care power of attorney naming his mother as his agent.

Regarding the power of attorney for health care, the Terri Schiavo case from Florida has pointed out the importance of having this document along with a living will. In that matter, there was a drawn-out court battle over who had the authority to make decisions regarding continuing Ms. Schiavo’s life support after being diagnosed to be in a persistent vegetative state.

  • Introduction to Power of Attorney
    A power of attorney is a document that lets you name someone to make decisions on your behalf. This appointment can take effect immediately if you become unable to make those decisions on your own. For example, if you become mentally incapacitated, or leave the country for a period of time, you...
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  • Definition of a Power of Attorney
    A power of attorney is a document you can use to appoint someone to make decisions on your behalf. The person you designate is called an "attorney-in-fact." The appointment can be effective immediately or can become effective only if you are unable to make decisions on...
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  • Durable Power of Attorney Permissions
    You can give your attorney-in-fact as many or as few powers as you want. A power of attorney can authorize your agent to do any or all of the following on your behalf:
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  • Legal Requirements for a Power of Attorney
    There are two essential elements of a valid power of attorney:
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  • Married Couples and Power of Attorney
    You should not assume your spouse will have total control of your finances if you become incapacitated. Although your spouse has some rights over property you own together, like joint bank accounts, he or she is restricted from doing certain things with that property. For example, generally both...
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  • Putting a Power of Attorney into Effect
    A durable power of attorney can be drafted so it becomes effective as soon as you sign it. Alternately, you can specify that it will not become effective unless a doctor certifies that you have become incapacitated. This is called a "springing" power of attorney. It...
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